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By Paul Chandler, Lei Shen

Many merger and acquisition (“M&A”) agreements lack specific representations and warranties regarding privacy issues. Often, this is because deal lawyers do not recognize potential privacy risks where the target company (the “Target”) lacks e-commerce websites or retail stores that collect consumer data. Nonetheless, significant privacy issues may exist even if the Target is a traditional “brick and mortar” business. Early attention to privacy issues in M&A transaction planning and due diligence can mitigate risks for both buyers and sellers.

Recent high-profile government enforcement actions highlight the need to analyze potential privacy risks. For example, Facebook’s acquisition of WhatsApp in February 2014 resulted in the US Federal Trade Commission (“FTC”) sending a warning to both companies that the failure to honor WhatsApp’s personal data promises to its customers would constitute a deceptive act under the FTC Act. Likewise, Barnes & Noble’s recent acquisition of Borders’ customer list garnered intense FTC scrutiny due to past promises by Borders not to share its customers’ data without their consent.

 

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